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The responsibility that companies facing litigation have to preserve relevant documents is wellknown. The precise contours of that duty with respect to electronic records, however, have been far from clear. Southern District Judge Shira Scheindlin has taken a primary role in the past two years to help clarify this issue, by issuing a series of lengthy discovery opinions in an employment discrimination case. Her latest decision in that case, Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y.), provides further guidance to clients and counsel on how to protect against electronic evidence being lost or inadvertently destroyed. Unfortunately, the opinion of one judge, however respected, cannot provide the certainty and uniformity that lawyers and clients need — and desire — in this area. Moreover, the latest Zubulake decision potentially could be misused by aggressive litigants to support motions for sanctions against both parties and counsel based on the alleged spoliation of electronic information. Help may be on the way, though, as the Civil Rules Advisory Committee of the U.S. Judicial Conference has recently published for comment proposed amendments to the Federal Rules of Civil Procedure that address the discovery of electronic records. THE ‘ZUBLAKE’ DECISIONS The Zubulake case involves a claim of employment discrimination by a saleswoman at UBS Warburg. In discovery, she sought e-mails sent and received by certain UBS personnel. Like most companies today, UBS regularly backed up its employees’ e-mails to tapes, which were then recycled on a regular schedule. The first dispute between the parties, covered by Zubulake I, 217 F.R.D. 309, addressed the question of whether information on backup tapes was discoverable. Judge Scheindlin held that additional facts were necessary to determine that question. She therefore ordered UBS to restore five backup tapes of Zubulake’s choosing in order to determine what information might be obtained and at what cost. After the sample restoration was complete, the parties once again required Judge Scheindlin’s intervention. Employing the test that she laid out in Zubulake I, Zubulake was ordered to pay 25 percent of the restoration costs as “there is plainly relevant evidence that is only available on UBS’s backup tapes,” yet “the success of this search is somewhat speculative.” 216 F.R.D. 280. In effecting the restoration, UBS discovered that several backup tapes were missing. It was also discovered that some e-mails created after preservation instructions were given had been deleted and were now only available via backup tapes. Zubulake returned to court seeking sanctions against UBS for its failure to preserve. 220 F.R.D. 212. The resulting opinion dealt primarily with the duty to preserve and when it arose and the scope of the duty. Judge Scheindlin found that the duty to preserve does not extend to backup tapes, except when the party can reasonably identify the tapes on which documents from “key employees” would be located. In these situations, the party does have a duty to preserve those “key employee” tapes. Zubulake proceeded to redepose a number of UBS employees. During these depositions she discovered that at least a half dozen employees had failed to retain e-mails relevant to the claim, in some cases even after the employees had received several instructions to preserve all evidence. The court noted that at least one e-mail was permanently lost, known only because it was referenced in other e-mails that were produced. Other e-mails deleted after preservation instructions had been given were only produced as a result of the backup tape restoration. Still others were not produced because, according to the opinion, counsel for UBS had been insufficiently diligent in obtaining them. Not surprisingly, Zubulake again petitioned for sanctions, including an adverse inference instruction. Judge Scheindlin concluded that UBS acted willfully in destroying potentially relevant information and that an adverse inference instruction was warranted. COUNSEL’S DUTIES The court focused much of its attention on the conduct of UBS’s outside counsel. It recognized as true that “counsel need not supervise every step of the document production process and may rely on their clients in some respects.” The court also noted that “[a] lawyer cannot be obliged to monitor her client like a parent watching a child.” Nonetheless, the court concluded that counsel was “not entirely blameless” in UBS’s production errors as it “failed” to communicate the litigation hold order to all key players — even though the hold order had been communicated to over a dozen employees — and also “failed” to ascertain each of the key players’ document management habits. The court then specified certain steps it believed counsel “must” take once litigation is pending or reasonably anticipated. These include: • placing a litigation hold on potentially relevant documents and notifying employees of that hold; • overseeing compliance with the litigation hold; • periodically reiterating that hold to ensure that all employees are aware of, and remember, the hold; • monitoring the party’s efforts to retain and produce the relevant documents; • communicating with “key players” who are likely to be relevant to the issues in the litigation in order to communicate clearly the duty to preserve and to enable counsel to understand how each individual stores electronic information. (“Unless counsel interviews each employee, it is impossible to determine whether all potential sources of information have been inspected.”); • and “becoming fully familiar with [the] client’s document retention policies, as well as the client’s data retention architecture.” (“This requires that counsel speak with technology personnel capable of explaining both the client’s system backup procedures and the actual compliance with and implementation of any document retention policies.”). Attorneys who have read the Zubulake decision are concerned by it. All recognize that lawyers have a role in protecting against the intentional and even negligent destruction of relevant evidence by a client. But there are real concerns with a laundry list of “must-dos” for counsel in this area. Most critically, lawyers are not competent to do some of the work potentially required by the decision. The vast majority of lawyers are not experts in computers or electronic storage media. Even if they were, they do not have the familiarity with the client’s systems necessary to fully understand at an early stage of the case, if ever, the myriad ways in which electronic records are stored across the company. Indeed, companies have IT departments who are trained in and work with the specific technology on a daily basis so they can understand it and operate it properly. Even then, the frequency with which computer systems are changed may mean that existing personnel within the company are not familiar with some of the older systems on which information is stored. Inevitably, information will be overlooked. Based on the author’s experiences, despite great effort and noble intentions, counsel and their client’s IT departments simply do not communicate effectively. Second, counsel will face difficult choices in deciding how broad or narrow a litigation hold/preservation instruction to give, and how often to repeat the instruction. Clients naturally resist broad preservation orders. This resistance is not unwarranted. Preservation can become extraordinarily complex and expensive, as it is typically impossible to suspend destruction of only the information covered by the preservation order. The issues are particularly challenging for clients with a substantial number of pending cases being handled by different outside counsel. Zubulake puts counsel on notice that the scope, timing and frequency of their document preservation instructions may well become the subject of court scrutiny — and in the context of a motion for sanctions no less. Third, in the author’s experience, IT departments in even the largest, most sophisticated businesses are not equipped to store and search electronic data — particularly data stored on backup tapes — in the manner suggested by Zubulake. Inevitably, then, where electronic information in such backup tapes must be restored and searched, clients will be forced to engage costly outside consultants and vendors to host the saved data and to run the searches necessary to find the potentially relevant records. Counsel will then have the further responsibility of supervising these outside consultants. Finally, in cases where the burdens of compliance on the parties are disproportionate, there is a real risk that discovery process will be misused to unduly burden one side. The disparity in discovery burdens is heightened when electronic records are involved. That is because, unlike paper records, electronic records are not consolidated in a handful of boxes but can reside in numerous locations (e.g., on laptops, individual desktops, hand held devices, servers and storage tapes), including locations that may well be unknown to the client. Moreover, electronic records contain massive amounts of information not remotely relevant to the issues in the case. The problems are particularly acute with backup tapes, which typically capture an entire month’s e-mail held by an entire server, not merely a single user. As a result, there is a real concern that we are setting up lawyers — particularly young lawyers who will bear the brunt of the work — to be IT consultants and discovery attorneys rather than litigators who examine witnesses, analyze substantive legal issues and write briefs, along with their responsibilities for collecting and analyzing key documents. Fortunately, the Standing Committee on Rules of Practice and Procedure of the U.S. Judicial Conference has recently published for comment several amendments to the Federal Rules of Civil Procedure that may alleviate the problem and provide the national uniformity needed in this area. Report of the Civil Rules Advisory Committee, May 17, 2004, revised Aug. 3, “Proposed Amendments to the Federal Rules of Civil Procedure,” Rule 26, at p. 6. A revised Rule 26(b)(2) would allow a party to withhold “electronically stored information that the party identifies as not reasonably accessible” absent agreement or court order. The proposed note provides the example of data that “may be stored solely for disaster-recovery purposes,” which is “expensive and difficult to use for other purposes,” as data that would not be reasonably accessible (and therefore, not required to be produced). The new rule would provide that a court may order discovery for good cause, which, according to the note, would be based on a balance of need and burdenusing the factors in Rule 26(b)(2). A revised Rule 26(b)(5) would allow for the post-production assertion of attorneyclient privilege where such material was inadvertently produced. A revised Rule 34 would require a party’s document requests to specify whether they are seeking electronically stored information. A revised Rule 37 would provide a safe harbor protecting a party from sanctions for a failure to produce electronically stored information lost because of the routine operation of a party’s computer system that automatically overwrites or alters electronically stored information. Until the Federal Rules are amended to adequately address the issues raised byelectronic discovery, the obligations of counsel and client concerning the preservation and production of electronic records will remain uncertain (except, perhaps, in Judge Scheindlin’s courtroom). Some suggestions for dealing with this uncertainty include: • Address the scope of electronic discovery with opposing counsel early in the case. • Communicate with the client’s IT department early in the case. • Pay early attention to key players and issue a litigation hold with clear descriptions of the types of electronic data thatmust be preserved. Provide regular reminders of the hold. • Review the electronic records to identify gaps or potential problems (for example, an e-mail referencing a prior e-mail which is not part of the retained records) before making production so unfounded suspicions do not arise when your adversary reviews the production. • Document the document collection process to establish the propriety and diligence of your conduct. • Advise clients to adopt policies in advance of litigation that provide rational and defensible guidelines on the treatmentof electronic documents. • Provide comments to the Standing Committee on Rules and Procedures concerning the proposed changes in the Federal Rules of Civil Procedure that are designed to address issues raised by electronic discovery. Gregg L. Weiner is a member of Fried Frank Harris Shriver & Jacobson.

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